9.  The first applicant, Mrs Cennet Ayhan, is the widow of Mehmet Emin Ayhan, a medical doctor who was killed by unknown assailants. She was born in 1962 in Eskişehir and is resident in Ankara, Turkey. The second applicant, born in 1961 in Nusaybin and resident in Akçatarla Village, Mardin, Turkey, is the deceased's brother. Both applicants are Turkish citizens.
10.  The facts of the case are in dispute between the parties.
11.  Mehmet Emin Ayhan, born in 1954 in Mardin, was a Turkish citizen of Kurdish origin. In 1991 he was appointed to the Silvan State Hospital where he worked as a senior physician. Mardin is located in one of the provinces subject to emergency rule at the relevant time and is heavily populated by Turkish citizens of Kurdish origin. On various occasions he openly expressed his left wing political views and his support “for the recognition of the Kurdish identity and for the democratic rights and liberties of the Kurdish society”.
12.  In early 1992 the Head of the Silvan Security Department telephoned Mehmet Emin Ayhan and asked him if a member of the special police unit could be accommodated at the hospital for some time. Mehmet Emin Ayhan replied that police officers were not members of the hospital staff and did not therefore qualify for accommodation at the hospital. The Head of the Security Department expressed his disappointment in strong language and told Mehmet Emin Ayhan that “his day would come”. He was subsequently harassed by persons unknown over the telephone. When he picked up the receiver no one answered. He was also informed that he was being secretly observed.
13.  On 10 June 1992 around 9.30 p. m., as Mehmet Emin Ayhan and his wife were returning home, three men were sitting in a coffee house located on the ground floor of their apartment building near the hospital. One of the three men approached Mehmet Emin Ayhan while he was locking the doors of his car. The other two men suddenly took out rifles hidden under their raincoats and shot out the street lights. The third man, who was a few metres away, approached Mehmet Emin Ayhan, fired a handgun and shot him through the neck. He died on the spot. The three men then got into a white Renault Toros which was parked at the side of the street and drove away.
14.  Members of the security forces arrived at the scene within five minutes. The deceased's widow showed the officers the direction in which the car had left and requested that the streets and houses be searched at once. She also requested orally that the owner of the coffee house be questioned about the identity of the three men. The officers did not follow up these requests.
15.  A report was drafted on 10 June 1992 at the scene of the incident by four officers from the Anti-Terror Department. This report described the place of the incident and identified the used cartridges found on the ground as having been fired from a handgun and from Kalashnikov rifles. No reference is made in the report to witness statements having been taken. In a second report also dated 10 June 1992 and signed by the same four officers and a fifth officer, it was stated that there were many people present at the scene of the killing when the police arrived. According to the report no one was able to testify as to what happened.
16.  The deceased's body was brought to the Silvan State Hospital where the Silvan Public Prosecutor conducted an autopsy with the participation of two doctors. One of these doctors, Zeki Tanrıkulu, had been a colleague and friend of Mehmet Emin Ayhan and was subsequently killed in a similar manner. The one-page autopsy report contained an identification of the physical features of the deceased. The cause of death was stated to be severe brain damage as a result of gunshot wounds. The doctors who signed the report stated that as the wounds were open, they did not find it necessary to conduct a “classic autopsy”.
17.  In a statement taken by the Silvan police on 30 June 1992 the first applicant stated that she did not see the faces of the killers and that she had no suspicions as to their identities.
18.  On 16 September 1992 the first applicant, for the purposes of claiming her pension rights, wrote to the Silvan public prosecutor stating that her husband had been killed by terrorists while returning from a visit to a patient.
19.  On 23 November 1993 the Silvan Public Prosecutor's Office completed its preliminary investigation. It decided, for reasons of jurisdiction, that the crime had to be investigated by the Public Prosecutor's Office at the State Security Court and transferred the case file to the Office. It noted in writing that the decision could be challenged. The applicants state that they did not challenge the decision because they were never notified of it.
20.  On 4 April 1994 the first applicant asked the Public Prosecutor's Office of the Diyarbakır State Security Court to inform her about the outcome of its investigation. In its reply of 4 April 1994, the Office notified the first applicant that her husband's murderers were being traced.
21.  On 25 November 1994 the Ministry of Health wrote to the Public Prosecutor's Office of the Diyarbakır State Security Court requesting information about the preliminary investigations being conducted into the killings of Mehmet Emin Ayhan and Zeki Tanrıkulu. On 7 December 1994 the Public Prosecutor's Office of the Diyarbakır State Security Court replied to the Ministry of Health stating that they had both been murdered by “the illegal separatist organisation” as part of its plan to intimidate civil servants. The Public Prosecutor added that the murderers were being sought.
22.  On 19 November 1997 the applicants again wrote to the Public Prosecutor's Office at the Diyarbakır State Security Court requesting information about the outcome of its investigation. On 26 November 1997 the Public Prosecutor's Office of the Diyarbakır State Security Court wrote to the applicant stating that it had declared itself incompetent on 2 December 1993 and had sent the file to the Diyarbakır Public Prosecutor's Office.
23.  On 3 December 1997 the applicants wrote to the Public Prosecutor's Office of the Diyarbakır State Security Court requesting further information about the investigation into the death of Mehmet Emin Ayhan.
24.  On 9 January 1998 the Public Prosecutor's Office of the Diyarbakır State Security Court wrote to the first applicant informing her that it had re‑examined its own investigation file. The Public Prosecutor stated that the murderers had been identified as members of the Hizbullah, an illegal armed organisation, but could not yet be caught.
25.  In a letter of 29 December 2005, the applicants informed the Court that the criminal proceedings against K.A., who is the alleged killer of Dr Ayhan, were still pending before the 6th Chamber of the Diyarbakır Assize Court. According to the Assize Court's hearing minutes dated 13 December 2005, a search warrant has been issued to apprehend M.A. who is currently a fugitive and that the criminal proceedings are still pending.
26.  Subsequent to the killing of Dr Ayhan, the authorities immediately commenced an investigation. Furthermore, the ballistics examination carried out at the Diyarbakır criminal police laboratory established that the cartridges found at the scene of the incident had been discharged from a weapon belonging to a terrorist named Ş.B. who had been captured dead during an operation carried out by the security forces on 11 November 1993 in Düzova hamlet of Sulak village in Silvan district.
27.  It appeared from the statements given by three members of the Hizbullah, namely İ.B., M.A. and B.O., that Dr Ayhan had been killed by K.A., who was also a member of the said organisation. Considering the situation in the region at the relevant time, in particular the rivalry between the PKK and Hizbullah terrorist organisations, and the fact that the deceased was a PKK sympathiser, it was highly likely that he was killed by members of the Hizbullah.
28.  Accordingly, the authorities initiated an investigation into the allegations made by the above-mentioned Hizbullah members. In this connection, a search warrant was issued to apprehend K.A.
29.  On 29 August 2001 K.A. was arrested by police officers in the province of Bursa.
30.  In an indictment dated 19 September 2001 K.A. was charged with, among other crimes, the murder of Dr Mehmet Emin Ayhan. The criminal proceedings are still pending against the accused.
31.  The applicants have submitted a number of documents in support of their allegations. These documents, in so far as they are relevant, are summarised below.
(a) Susurluk report of January 1998
32.  Before the Court the applicant referred to the so-called Susurluk Report, which was first produced to the Court in the case of Yaşa v. Turkey (judgment of 2 September 1998, Reports of Judgments and Decisions 1998‑VI, pp. 2423-24, § 46). The report became available in February 1998, after counsel had submitted the final pleadings on behalf of the applicant in the proceedings before the Commission. This confidential report was initially intended to be only for the Prime Minister, who had commissioned it on 13 August 1997 from the Board of Inspectors within his Office. After receiving the report in January 1998, it would appear that the Prime Minister then made it available to the public, although eleven pages from the body of the report and its appendices were withheld.
33.  The introduction stated that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south-east Turkey and which tended to confirm the existence of a tripartite relationship involving unlawful dealings between political figures, government institutions and clandestine groups.
34.  The report analysed a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State. It concluded that there was a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result, particularly in the drug-trafficking sphere.
(b) Silvan Chief Public Prosecutor's decision of non-jurisdiction
35.  On 23 November 1993 the Chief Public Prosecutor in Silvan issued a decision of non-jurisdiction and referred the investigation into the killing of Mehmet Emin Ayhan to the Chief Public Prosecutor's office at the Diyarbakır State Security Court.
(c) Scene of the incident and survey reports of 10 June 1992
36.  Four police officers from the anti-terrorist branch of the Silvan Security Directorate drafted two reports at the scene of the murder. The first report described the place of the incident and identified the used cartridges found on the ground as having been fired from a handgun and from Kalashnikov rifles.
37.  In a second report which also dated 10 June 1992 and signed by the same four officers and a fifth officer, it was stated that there were many people present at the scene of the killing when the police arrived. According to the report no one was able to testify as to what happened.
(d) Sketch-map of the scene of the incident
38.  This sketch-map was drafted by the police officers who were at the scene of the murder. It described the location of the body, the cartridges found and the surrounding buildings and streets.
(e) Autopsy report of 10 June 1992
39.  This report was prepared by a public prosecutor attached to the Silvan Chief Public Prosecutor's office. It contained a description of the physical features of the deceased. The cause of death was stated to be severe brain damage as a result of gunshot wounds. The doctors who signed the report stated that as the wounds were open it was unnecessary to conduct a “classic autopsy”.
(f) Ballistics report dated 11 June 1992
40.  Ballistics tests on 10 cartridges and 2 bullets retrieved at the scene of the incident were carried out by the Regional Police Laboratory. A comparative examination showed up conformity in various respects, indicating a single source. The cartridges and the bullets were kept in the laboratory archives with a view to comparing them with weapons to be found by the investigators.
(g) Cennet Ayhan's statements dated 30 June 1992
41.  In her statements to the police concerning the killing of her husband, the applicant explained that her husband had been killed by a person who fired once at her husband in front of their house and that the killer had escaped along with two other persons after the shooting. The police officers had arrived immediately after the shooting and had fired in the air to stop the killers. However, at that moment the city lights had been switched off and the killers had escaped. The applicant further stated that she had not seen the faces of the killers and that there was nobody whom she suspected of being the killer of her husband.
(h) Diyarbakır Chief Public Prosecutor's letter to the Ministry of Health
42.  In a letter of 7 December 1994 the Chief Public Prosecutor informed the Ministry of Health that Dr Mehmet Emin Ayhan and Dr Zeki Tanrıkulu, who had been working at the Silvan State Hospital, had both been killed by terrorists and that the investigation to find and apprehend the perpetrators of the murder were pending.
(i) Diyarbakır Chief Public Prosecutor's letter to the applicants' representative
43.  In a letter of 9 January 1998 Diyarbakır Chief Public Prosecutor informed the first applicant through her lawyer that the investigation to find the killers of Mehmet Emin Ayhan was continuing.
(j) Ballistics report dated 14 December 1999
44.  Ballistics tests on the cartridges retrieved from the scene of the incident were carried out by the Diyarbakır Criminal Police Laboratory. A comparative examination revealed a match with a Tabuk (Kalashnikov) type rifle with no. 8002594 1989 which was found in the possession of a terrorist named Şehmus Bal.
k) Criminal proceedings against the alleged perpetrators of the killing of Mehmet Emin Ayhan
45.  On 3 May 1995 I.B., M.A. and B.O. were questioned by police officers about their involvement in the Hizbullah. The suspects admitted that they had been involved in illegal activities of the organisation and that they had waged a war against the PKK for the purposes of defending themselves and setting up an Iran-like state. I.B. clarified that he was the person responsible for the military wing of the organisation and that M.A. was his deputy. I.B. further noted that they had killed a number of PKK sympathisers, including Dr Mehmet Emin Ayhan.
46.  On 4 May 1995 the three suspects were questioned at the Chief Public Prosecutor's office attached to the Diyarbakır State Security Court. They all denied that they had been involved in the Hizbullah or its illegal activities. They claimed that their statements dated 3 May 1995 had been obtained under duress. On the same day, the suspects were brought before the Diyarbakır State Security and were questioned by the single judge of the court. They all denied the charges and alleged that their statements taken by the police officers were untrue and had been obtained under duress.
47.  In an indictment dated 9 June 1995 filed with the Diyarbakır State Security Court criminal proceedings were brought against eleven persons, including I.B. and M.A., for membership of an illegal terrorist organisation, namely Hizbullah, whose aim was to separate part of the country and to set up a Kurdish-Islamic state. These persons were also accused of having killed 40-45 persons, excluding Dr Ayhan, in Silvan.
48.  On 29 April 1999 the Diyarbakır State Security Court convicted I.B. and M.A., under Article 168 § 2 of the Criminal Code, of membership of an illegal terrorist organisation and sentenced them to twelve years and six months' imprisonment.
49.  On 30 April 1999 the Chief Public Prosecutor's office at the Diyabarkır State Security Court appealed against the judgment of 29 April 1999 and claimed that I.B. and M.A. should have been acquitted given the lack of sufficient evidence for their conviction. On an unspecified date, I.B. and M.A. also appealed against the State Security Court's judgment.
50.  On 29 November 1999 the Court of Cassation quashed the State Security Court's judgment of 29 April 1995 on the grounds that there was insufficient evidence to secure the conviction of the accused of membership of the organisation and that the first instance court had failed to convict I.B and M.A. of illegal possession of firearms.
51.  In a letter of 4 July 2000 the head of the anti-terrorist branch of the Diyarbakır Security Directorate informed the Chief Public Prosecutor attached to the State Security Court that K.A. was being sought for the murder of Dr Ayhan on orders of M.A. and I.B. (code name Şehmus).
52.  In an additional indictment dated 10 July 2000, the Chief Public Prosecutor at the Diyarbakır State Security Court charged I.B. and M.A. with having planned and ordered the killing of Dr Mehmet Emin Ayhan. The public prosecutor noted that the murder had been perpetrated by K.A.
53.  On 6 November 2000, the Chief Public Prosecutor at the Diyarbakır State Security Court filed an indictment with the latter and charged K.A. with having carried out armed attacks on behalf of the Hizbullah terrorist organisation. He alleged that K.A. had killed Dr Ayhan on the orders given by M.A and I.B. He therefore requested that K.A. be punished in accordance with Article 146 of the Criminal Code, that he be detained on remand in absentia and that the criminal proceedings against K.A. be joined to those pending against M.A. and I.B.
54.  On 17 November 2000 the Diyarbakır State Security Court ordered K.A.'s detention on remand in his absence on account of his alleged involvement in armed attacks carried out by the Hizbullah terrorist organisation.
55.  On 29 August 2001, K.A., the alleged killer of Dr Mehmet Emin Ayhan was arrested in Bursa.
56.  According to an on-site inspection report of 12 September 2001, K.A., was in detention in police custody at the Diyarbakır Security Directorate. On the same date, police officers, a public prosecutor and a clerk took him to the scenes of the crimes that he had committed. At the scene of the killing of Dr Ayhan, K.A. admitted that he had committed the murder along with M.E. and Z.B. He further explained the details of the murder plan and how they escaped following the murder.
57.  In an indictment of 19 September 2001 filed against K.A. and his co‑accused, the Chief Public Prosecutor alleged that K.A. had been an active member of the Hizbullah terrorist organisation and had been involved in the killing of five persons, including Dr Mehmet Emin Ayhan. He noted that Dr Ayhan had been shot dead by M.E. and Z.B. for being a PKK sympathiser and that K.A. had acted as an armed look-out at the time of the murder.
58.  On 29 January 2002 the State Security Court decided to sever the criminal proceedings against K.A. from those pending against B.O.
59.  On 21 January 2002 K.A. was brought before the State Security Court. At the hearing he denied the charges against him and claimed that he was not a member of Hizbullah and that he had not been involved in any of the murders. He asserted that his statements in which he had confessed to the crimes had been obtained under torture inflicted by the police officers during his detention in police custody. Furthermore, when questioned about the on-site inspection report of 12 September 2001, K.A. alleged that the content of the report prepared by the public prosecutor was untrue because he had never been taken to the scene of the murder and had been forced to make prepared statements.
60.  On 5 February 2002 I.B., one of the alleged accomplices of K.A. was arrested. In his statements of 6 February 2002 given to the Public Prosecutor and to the single judge of the State Security Court, I.B. denied that he was a member of Hizbullah or that he had been involved in illegal activities of that organisation.